OPINION AND ORDER
WHIPPLE, Chief Judge.
Plaintiffs have petitioned this Court for an Order requiring the defendant, National Rifle Association of America, (NRA), to publish certain advertising in The American Rifleman, NRA's official journal. On behalf of Fitzgerald, plaintiffs submitted an advertisement concerning Fitzgerald's candidacy for the NRA's Board of Directors, which defendants refused to publish.
The 75 member Board consists of, and is elected by, so-called "life members" of the NRA. There are approximately 146,000 members in this category, while "annual members" number more than 800,000. Annual members are not eligible to vote for the Board of Directors, but may make recommendations to a "Nominating Committee" which selects candidates for the election.
The Nominating Committee is selected by the president of the NRA, who is elected by the members of the Board of Directors. As noted above, this Committee, which is comprised of life members, engages in the process of nominating candidates for the Directors' election. NRA By-laws also provide for a write-in ballot in this election.
In an effort to gain nomination, plaintiff Fitzgerald first became a life member by paying the necessary fee. He then sought support from the membership by means of an advertisement in The American Rifleman.
Upon receipt of the proffered ad, with which proper payment was tendered, the NRA advised that the material was unsuitable for publication. On its advertising rate card, the NRA states that it "reserves the right to reject or discontinue any advertisement and to edit all copy."
The defendant justifies its refusal to publish the plaintiffs' advertisement by citing an impressive list of precedents upholding the right of a newspaper or magazine to refuse to accept for publication any advertisement submitted to it by a prospective advertiser.
The discretion afforded publishers to deny space to those seeking to buy it is premised on the characterization of newspapers as private enterprises, rather than as businesses clothed with a public interest.
Accordingly, a newspaper publisher is generally free to contract and deal with whomever he chooses in the same manner as other businessmen. See J. J. Gordon, Inc. v. Worcester Tel. Publishing Co., 343 Mass. 142, 177 N.E.2d 586 (1961). This Court has no quarrel with this principle and recognizes the general right of a newspaper or magazine to decide what advertisements it will and will not accept. It is the Court's view, however, that this rule is not absolute in all circumstances. Like the vast majority of legal rights and privileges, the right here in question must yield when its exercise would result in the curtailment of another right of even greater social importance.
The United States Supreme Court has recognized the qualified nature of the publisher's right to refuse advertisements. In Lorain Journal Co. v. United States, 342 U.S. 143, 72 S. Ct. 181, 96 L. Ed. 162 (1951), the Court faced the question of whether a newspaper could refuse advertising when its purpose was the monopolization of interstate commerce. In discussing the issue, the Court noted:
The publisher claims a right as a private business concern to select its customers and to refuse to accept advertisements from whomever it pleases. We do not dispute that general right. "But the word 'right' is one of the most deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion. Most rights are qualified." American Bank & Trust Co. v. Federal Reserve Bank, 256 U.S. 350, 358, 41 S. Ct. 499, 500, 65 L. Ed. 983. The right claimed by the publisher is neither absolute nor exempt from regulation.
Id. at 155, 72 S. Ct. at 187.
The Court concluded that when balanced against the Congressional policy of preventing monopoly, the right of publishers to refuse advertisements must yield.
The publisher's right of refusal was also forced to yield to a countervailing right in Hodgson v. United Mine Workers of America, 344 F. Supp. 17 (D.D.C. 1972). Significantly, the countervailing interest in Hodgson was the right of union members to a fair election under the Labor Management Reporting and Disclosure Act, 29 U.S.C.A. § 481 et seq.
In the instant case, this Court must decide whether the publisher's right must give way when balanced against the fiduciary duty of corporate directors to insure fair and open corporate elections. This duty of course extends only to the association membership. Plaintiffs Fitzgerald and Abelman are members in good standing of the NRA and thus qualify to bring this issue to the Court's attention. The third plaintiff, NRA Members for a Better NRA, is not now, nor has it ever been, affiliated with the NRA in any way. As to this plaintiff, therefore, all relief is denied. All future references to plaintiffs in this Opinion apply only to Messrs. Fitzgerald and Abelman.
At the outset it is important to note that The American Rifleman is the official journal of the NRA. As such it is neither published for, nor circulated to, the general reading public. The Court takes judicial notice that the Rifleman is available only to NRA members. It is not sold at newsstands, nor are subscriptions accepted from non-NRA members. The magazine's publishing costs are met through NRA membership dues, as well as through the acceptance of advertising. In addition to containing articles of general interest to gun enthusiasts, the Rifleman is used to acquaint NRA members with the policies and activities of the association.
Finally, it should be pointed out that the Rifleman is an integral part of the NRA's election process. Once the nominating committee has selected its list of candidates for office, the list is published in the Rifleman. Voters then must refer to the Rifleman in order to exercise their franchise.
This special relationship between the NRA and The American Rifleman indicates that the Rifleman is closer in form to a corporate newsletter than to a traditionally commercial publication such as Time or Newsweek. Indeed in the instant case, traditional distinctions between a publisher and an advertiser become blurred, since the plaintiffs may justifiably claim an ownership interest in the American Rifleman. Plaintiffs are members in good standing of the association which publishes the magazine and their dues go in part to meet the magazine's printing costs.
The NRA itself is organized under the laws of the State of New York pursuant to that state's Not-For-Profit Corporation Law § 101 et seq. (McKinney's Consol.Laws, c. 35, 1970) [hereinafter N.P.C.L.]. Like all corporate directors and officers, the management of the NRA owes a fiduciary duty to its stockholders (in this case the association's membership) to conduct the NRA's affairs in a good faith effort to promote the best interests of the association. In the case of the NRA, this common law duty is augmented by Section 717(a) of the N.P.C.L., which provides in part:
Directors and officers shall discharge the duties of their respective positions in good faith . . . .
Because of the special relationship between the NRA and The American Rifleman, it is this Court's view that the fiduciary obligations of the association's directors and officers applies with equal vigor to the operation of The American Rifleman.
As part of their overall fiduciary relationship with the stockholders, it is well established that the directors and officers cannot manipulate the affairs of the corporation primarily with the intent of securing control of the corporation to one faction of stockholders or of excluding another. See 3 W. Fletcher Cyc. Corp. § 850, at 206 (perm. ed. rev. 1965). Justice Douglas speaking for the Court in Pepper v. Litton, 308 U.S. 295, 311, 60 S. Ct. 238, 247, 84 L. Ed. 281 (1939), firmly restated this principle in the following language:
He who is in such a fiduciary position cannot serve himself first and his cestuis second. He cannot manipulate the affairs of his corporation to their detriment and in disregard of the standard of common decency and honesty . . . He cannot use his power for his own personal advantage and to the detriment of the stockholders and creditors no matter how absolute in terms that power may be and no matter how meticulous he is to satisfy technical requirements. For that power is at all times subject to the equitable limitations that it may not be exercised for the aggrandizement, preference, or advantage of the fiduciary to the exclusion or detriment of the cestuis.